Casting aside justice: by claiming the power to imprison terrorist suspects without trial, or to send them abroad to be tortured by foreign secret police, President Bush is creating precedents that imperil the rights of U.S. citizens.

We know that no one ever seizes power with the intention of
relinquishing it. Power is not a means; it is an end. One does not
establish a dictatorship in order to safeguard a revolution; one makes
the revolution in order to establish the dictatorship. The object of
persecution is persecution. The object of torture is torture. The object
of power is power.

--O'Brien, torture specialist in George Orwell's 1984

Roughly a century and a half before Orwell published 1984, his
cautionary tale of endless dictatorship through perpetual war, British
statesman Edmund Burke warned that "criminal means, once tolerated,
are soon preferred." That which we authorize our government to do
to anyone, it can do to everyone. If we permit the government supposedly
protecting us to ignore the constitutional limits on its powers, it will
quickly become the single greatest threat to our own lives and
liberties.

The Bush administration, and those who dutifully echo its rhetoric,
insist that everything changed on 9/11. "There was a before-9/11
and an after-9/11," Cofer Black, the onetime director of the
CIA's counter-terrorist unit, insisted in congressional testimony
in 2002. "After 9/11 the gloves came off."

As Burke observed, once a government removes those
"gloves," it will only put them on again when it is forced to
do so. And once a state--any state --gets the scent of blood in its
nostrils, it tends to become less than discriminating in its targets.

Many conservatives consider it something akin to sedition or
treason to criticize the Bush administration for claiming that the
president has unlimited power to deal as he sees fit with anyone he
designates as an enemy in the "war on terror." This
perspective rests on two completely unjustified assumptions. The first
is that George W. Bush, being a better man than Bill Clinton (hardly the
highest hurdle to surmount), can be entrusted with extraordinary powers.
The second is that the powers in question would always be used against
"them"--that is, the "worst of the worst"--rather
than against "us."

Mr. Bush's trustworthiness, or lack thereof, aside, he is
constitutionally required to step down in January 2009. His successor
could very well be a second president Clinton (or a first president
Rodham), or someone of similar ideological inclinations who might look
on "right-wing extremists" as the domestic equivalent of
al-Qaeda. Once again, that which we authorize the government to do to
anyone, it can do to everyone.

In defiance of centuries of Anglo-Saxon common law, the Bush
administration claims that the president has the power to render any
individual an "un-person" with respect to the protection of
the law by designating him an "enemy combatant." Those thus
designated may be imprisoned, without legal recourse of any kind, for as
long as the president sees fit, and be treated in any manner the
president deems suitable. This could include the delivery of such
hapless people into the hands of foreign governments--such as those
ruling Egypt, Syria, Morocco, or Uzbekistan--that employ torture as a
means of interrogation.

None of this is theoretical. Our government is doing these things today, and anticipates making use of these criminal means for the
foreseeable future. And, once again, under the doctrines being devised
by the administration, U.S. citizens could be subject to such treatment
at the president's discretion.

The Padilla Case

For three years, Jose Padilla, an American citizen, has been
detained in military custody, without trial, at the Naval Consolidated
Brig in Charleston, South Carolina. Padilla was arrested by federal
agents on May 15, 2002, after he arrived from Pakistan at Chicago's
O'Hare International Airport. Then-Attorney General John Ashcroft claimed that Padilla, an ex-convict whose unsavory background includes
participation in ethnic street gangs and other suspicious associations,
had been involved in a plot to smuggle a radioactive "dirty
bomb" into the country.

There is ample reason to believe that Padilla was involved in
criminal activity, and some circumstantial evidence that he may have had
contacts of some sort with Muslim radicals. He's poorly cast in the
role of martyr for the cause of civil liberties--which is probably why
he was chosen as the first test of the president's supposed power
to incarcerate U.S. citizens at whim.

President Bush designated Padilla an "enemy combatant" by
executive order on June 9, 2002. This was done on the basis of evidence
compiled, after the fact, by Michael H. Mobbs, Special Adviser to the
undersecretary of defense for policy. The administration insists that
the so-called "Mobbs Declaration" satisfies the requirements
of Due Process in Padilla's case.

From the administration's perspective, a document written by a
third-tier executive branch functionary justifying the president's
order to imprison a U.S. citizen nullifies the need for a trial--or
judicial review of any kind. The administration also claims that the
presidential "enemy combatant" designation renders moot the
habeas corpus guarantee, under which an incarcerated individual must be
brought before a judge and either formally charged with a crime or
released.

Then-Deputy Solicitor General Paul D. Clement argued in a July 2003
brief submitted to the U.S. Court of Appeals that Padilla's
imprisonment, as a "wartime" measure, falls entirely within
the president's discretion and cannot be subject to the scrutiny of
the courts. Judicial review "of the Commander-in-Chief's
wartime judgements would raise serious separation-of-powers
concerns," insisted the administration's brief. Such review
"could extend no further than assessing whether there is some
evidence supporting that [presidential] determination. To that end, the
government submitted the Mobbs Declaration setting forth the evidentiary
basis for the President's determination."

The administration's reasoning, if that word applies, is
perfectly circular: Padilla, as an enemy combatant, is not entitled to
due process of law beyond the president's determination that he is
an enemy combatant.

In a December 13, 2003 decision, the Second Circuit Court of
Appeals ruled against this sweeping claim of presidential power, since
even in wartime "presidential authority does not exist in a
vacuum." While the Constitution does provide for the suspension of
habeas corpus (which would permit emergency detention of suspects), that
power is assigned exclusively to Congress. Rather than enacting
legislation to permit such summary detentions, Congress in 2000 had
passed a law called the "Non-Detention Act" expressly
forbidding the summary imprisonment of American citizens. Since
Padilla's detention was not authorized by Congress, the court
observed, "the president does not have the power ... to detain as
an enemy combatant an American citizen seized on American soil outside a
zone of combat."

The Bush administration appealed the Appeals Court's ruling to
the Supreme Court, which has declined thus far to rule on the
substantive issues raised by the case. In a similar case involving Yaser
Essam Hamdi, a U.S. citizen captured on the battlefield in Afghanistan,
the High Court upheld the detainee's right to mount a court
challenge to his imprisonment. Writing on behalf of the majority,
retiring justice Sandra Day O'Connor explained: "A state of
war is not a blank check for the president when it comes to the rights
of the nation's citizens."

The administration continues to hold Padilla in military custody
and will likely have a second opportunity to challenge the lower
court's ruling in his case. Furthermore, the retirement of
O'Connor may offer President Bush a chance to build what legal
reporter Rick Montgomery calls "a wartime Supreme Court."

Leader Principle

One essential principle of Anglo-Saxon Common Law since the Magna
Carta is that the government, as represented by a king or a president,
cannot imprison an individual without due process. Standing in direct
opposition to that concept is the "leader principle," under
which the executive--monarch, president, or dictator--answers to no one.

In a section defining the leader principle (fuhrerprinzip), the
Organization Book of the German National Socialist (Nazi) Party states
that the power of the chief executive "is not limited by checks and
controls, by special autonomous bodies or individual rights, but it is
free and independent, all-inclusive and unlimited.... He is responsible
only to his conscience and the people." Soviet dictator Vladimir
Lenin, who invented modern totalitarianism, summarized his version of
the "leader principle" as follows: "The scientific
concept of dictatorship is nothing else than this--power without limit,
resting directly on force, restrained by no laws, absolutely
unrestricted by rules."

Ritually invoking September 11, the Bush administration--with the
aid of its surrogates in talk radio and other conservative media
outlets--has made astonishing progress toward enacting an American
version of fuhrerprinzip. The basis of that doctrine is the post 9/11
congressional resolution authorizing the use of force against
terrorists. That resolution has been treated by the Bush administration
as a wholesale transfer of authority, both legislative and judicial, to
the president in his role as commander-in-chief. In a constitutional
sense, this claim is tantamount to a blank check written against a
non-existent account in a fictitious bank.

In December 2004, the Justice Department quietly released a legal
memorandum entitled "The President's Constitutional Authority
to Conduct Military Operations Against Terrorists and Nations Supporting
Them." The document, composed by former Deputy Assistant Attorney
General John C. Yoo, had been circulated within the administration on
September 25, 2001, but hadn't previously been made public.

By publicly releasing its contents when it did, the Bush
administration ensured that there would be no discussion of its plainly
totalitarian concept of presidential power during the 2004 campaign.
Significantly, once securely reelected, George W. Bush referred to the
election as an "accountability moment" that bestowed the
electorate's blessing on everything his administration had done in
its first term. Presumably that "accountability moment"
ratified the expansive claims of presidential power in the Yoo
Memorandum, which had been kept from the public.

"We conclude that the Constitution vests the President with
the plenary authority, as Commander in Chief and the sole organ of the
Nation in its foreign relations, to use military force abroad,"
proclaims the Yoo Memorandum. The document specifically claimed that
Congress cannot "place any limits on the President's
determinations as to any terrorist threat, the amount of military force
to be used in response, or the method, timing, and nature of the
response. These decisions, under our Constitution, are for the President
alone to make."

One wonders which "Constitution" Yoo refers to, since
nothing in the charter created at Philadelphia in 1787, and ratified by
the original states, invested powers of that variety in the president.
In our constitutional system, no branch of the federal government has
"plenary," or absolute, authority; this is particularly true
of the president, whose powers as commander-in-chief are contingent and
limited. Congress controls all power to appropriate funds, including
those for the military, and it has the sole authority to establish
regulations governing the armed forces. Additionally, only Congress can
declare war.

The Yoo Memorandum claims: "During the period leading up the
Constitution's ratification, the power to initiate hostilities and
to control the escalation of conflict had long been understood to rest
in the hands of the executive branch."

This is a bit like an adulterer justifying his infidelity by
pointing out that "during the period leading up to" his
marriage, he had been free to indulge his carnal whims. Prior to
adoption of the U.S. Constitution, the power to conduct war had been
exercised by the British monarch. As Hamilton pointed out in The
Federalist, No. 69, the war power delegated to the president through the
Constitution was "in substance much inferior" to that of the
British monarch, with the power to declare war and raise armies given
exclusively to the legislature.

Rather than being rooted in the U.S. Constitution, the Bush
administration's doctrine of executive power has more in common
with the "Enabling Act" passed by the German Reichstag in
1933, which gave the German chief executive--Adolf Hitler--the legal
basis for building the National Socialist dictatorship and conducting
aggressive war against Germany's neighbors.

In December 2001, another secret Justice Department memorandum (not
disclosed to the public until it was leaked in mid-2004) instructed the
Defense Department that no federal court could "properly
entertain" appeals from "enemy aliens" held in detention
at the U.S. Naval Base in Guantanamo Bay, Cuba. Asserting that Cuba has
"ultimate sovereignty" over Guantanamo (which would mean, if
this claim were said in earnest, that U.S. military personnel at that
facility are under Fidel Castro's authority), foreign nationals
held there are beyond the jurisdiction of U.S. courts.

That memorandum essentially consigned foreign nationals detained at
Gitmo to legal limbo: They were to be treated neither as prisoners of
war nor as criminal suspects. The designation of Jose Padilla as an
enemy combatant opened the gates of that legal limbo to U.S. citizens.
An August 1, 2002 memorandum written by former assistant Attorney
General Jay S. Bybee (now Judge Bybee of the Ninth Circuit Court of
Appeals) made the explicit claim that the president can order the
torture of detainees as he sees fit.

The Bybee memo was written on behalf of Alberto Gonzalez--at the
time, chief Legal Counsel to the president, currently the incumbent
attorney general. In it Bybee professed to discover a "sweeping
grant" of authority to the president in the form of an unenumerated
"Commander-in-Chief Power." Acting as an agent of the
commander-in-chief, interrogators enjoy immunity from prosecution under
laws against torture, since (according to Bybee) "enforcement of
[an anti-torture] statute would represent an unconstitutional
infringement of the President's authority to conduct war."
Thus "the Department of Justice could not bring a criminal
prosecution [against someone] who had acted pursuant to an exercise of
the President's constitutional power.... If Congress could do so,
it could control the President's authority through the manipulation
of federal criminal law."

It bears repeating that even (or perhaps especially) in wartime,
the president's powers are contingent, not absolute. And the
president is required to see that all constitutionally sound
laws--including those prohibiting torture--are "faithfully
executed." The Bush administration, however, is wedded to a
doctrine of executive power alien to our Constitution and unmistakably
akin to the doctrines devised by Lenin, Hitler, and their totalitarian
heirs.

In his August 2002 "torture memorandum," Bybee asserted
that interrogation techniques "may be cruel, inhuman, or degrading,
but still not produce pain and suffering or the requisite
intensity" to meet the legal definition of torture. Only acts that
inflict pain "equivalent in intensity to ... serious physical
injury, such as organ failure, impairment of bodily function, or even
death" could be considered torture. And as Bybee concluded
elsewhere, acts of unambiguous torture are "legal" when
committed by those acting on behalf of the president.

Not everyone within the Bush administration agreed with the Bybee
memo's assertions. FBI Director Robert Mueller has stated that
interrogation methods used by CIA interrogators in Cuba, Afghanistan,
and Iraq "violate all American anti-torture laws and would be
prohibited in criminal cases of the most serious kind." Mueller has
actually instructed FBI agents in Guantanamo Bay to leave the room when
CIA or military intelligence interrogators begin their work, in order to
avoid implicating the Bureau in acts the director regards as clearly
criminal.

Outsourcing Torture

Many of those detained and interrogated by the Bush administration
are removed from U.S. jurisdiction entirely and flown--via a fleet of
Gulfstream V executive jets--to countries such as Egypt, Saudi Arabia,
Syria, or Uzbekistan. This process, known as "extraordinary
rendition," has been labeled "outsourcing torture" by its
critics. That description is entirely reasonable, given that its chief
selling point is the fact that the recipient regimes are all notorious
for the use of torture.

In a March 12 Boston Globe op-ed column, Representative Edward J.
Markey (D-Mass.) offered a capsule description of the
"rendition" process at work:

An unmarked plane arrives in the
middle of the night carrying men who
aren't wearing uniforms but have on
black hoods. The men grab prisoners
out of the hands of government officials,
cut off their clothes, drug them
on the spot, shackle them, force the
prisoners onto the plane and take off
into the night. When the "torture"
plane disappears, no one knows where
and when the captives will appear and
what will happen to them: electrocution,
beatings, sexual abuse?
At first guess, you might imagine
that this terrible operation is
the work of a drug cartel or a rogue
member of the "axis of evil," but the
scene described involves U.S. officials
as a routine part of the Bush
administration's practice of "outsourcing
torture."

In fact, the practice of "extraordinary rendition," like
many other constitutionally impermissible counter-terrorism policies
followed by the Bush administration, actually began under Bill Clinton.
Former CIA Director George Tenet testified before Congress in 2002 that
over 70 people had been subject to rendition prior to September 11,
2001. Another official cited by Rep. Markey estimated that "over
150 renditions have been conducted since 9/11 ."

The Bush administration and its supporters insist that rendition is
an unsavory but necessary method to extract information from the
"worst of the worst." But the problem, once again, is that it
amounts to summary imprisonment and torture of individuals by
presidential decree. As the case of Canadian citizen Mahar Arar
illustrates, innocent people can suffer tremendous harm by being swept
up in the net of "extraordinary rendition."

Snatched to Syria

Arar, a Syrian-born Canadian, was returning from a family vacation
abroad in September 2002 when he was detained at JFK Airport by agents
of the Immigration and Naturalization Service. For several hours, Afar
was kept in a semi-secure area by officials who insisted that he was
undergoing a "regular procedure." Arar (who had gone home
alone ahead of the rest of his family) was denied access to a telephone
and required to surrender his Canadian passport. Eventually he was
joined by an interrogation team, including an FBI agent and a New York
police officer.

"I told them I wanted a lawyer," recalled Arar more than
a year later. "They told me I had no right to a lawyer, because I
wasn't an American citizen.... They swore at me, and insulted me.
It was very humiliating. They wanted me to answer every question
quickly. They were consulting a report while they were questioning me,
and the information they had was [very] private.... I told them
everything I knew."

The questioning focused on Arar's relationship with a man
named Abdullah Almalki, whose brother worked with Arar at a hi-tech
consulting firm in Ottawa. The Almalki family had emigrated to Canada
from Syria at roughly the same time as Arar's, and he told his
interrogators that he had a "casual" relationship with
Abdullah.

The questioners, accusing Arar of lying, produced a copy of
Arar's 1997 rental lease agreement, which Abdullah had signed as a
witness. Arar, understandably, had forgotten that Abdullah had
substituted in that role at the last minute when his brother hadn't
been available. "But they thought I was hiding this," he
related. "I told them the truth. I had nothing to hide. I had never
had any problems with the United States before, and I could not believe
what was happening to me."

The interrogation lasted until midnight. Arar's pleas to speak
with an attorney were ignored. Eventually he was shackled in chains,
stuffed in a van, and taken to "a place where many people were
being held in another building by the airport." There his
questioning soon resumed, this time focusing on "what I think about
bin Laden, Palestine, Iraq. They also asked me about the mosques I pray
in, my bank accounts, my

e-mail addresses, my relatives, about everything."

An INS official demanded that Arar "volunteer to go to
Syria." Arar, a Canadian citizen by choice, asked to be sent to his
adopted homeland. He was given a document and told to sign it without
being allowed to read it. Weary and thoroughly intimidated, and still
convinced that what he believed to be a misunderstanding would soon be
straightened out, Afar signed the paper. He was shuttled to New
York's Metropolitan Detention Center, where he was finally afforded
a few basic decencies, including an opportunity to call his family.

Roughly two weeks after Arar's ordeal began, he was roused at
3:00 a.m. on Tuesday, October 8, by a prison guard who informed him that
"based on classified information that they could not reveal to me,
I would be deported to Syria." Chained and shackled, Arar begged
not to be delivered into the custody of a regime identified as a
terrorist state by the U.S. government--a regime his family had fled
over a decade and a half earlier. Responding to Arar's protests
that he would be tortured at the hands of Syrian officials, his captors
"read part of the document [he had earlier signed under duress]
where it explained that INS was not the body that deals with Geneva
Conventions regarding torture."

Shoved into a car and taken to New Jersey, Arar was bundled into a
small private jet. "I was the only person on the plane" apart
from the flight crew, Arar recalled. "I was still chained and
shackled." The plane made stops in Washington, D.C.; Portland,
Maine; Rome, Italy; and then Amman, Jordan. During the flight Arar
overheard unnamed officials "talking on the phone, saying that
Syria was refusing to take me directly, but Jordan would take me."

On arrival in Amman, Arar was blindfolded, chained, and thrown into
another van. His captors immediately began to beat him. In short order
he was delivered into the custody of an even rougher crew that was
identified as "the Palestine branch of the Syrian military
intelligence." Like the Americans who had originally seized Arar,
the Syrians had a detailed dossier. But their methods of interrogation
were much more severe.

"If I did not answer quickly enough, [the colonel and chief
interrogator] would point to a metal chair in the corner and ask,
'Do you want me to use this?'" recounted Arar. "I
did not know then what the chair was for. I learned later it was used to
torture people." Taken to a basement, the hapless Canadian--who to
this day has never been charged with a crime by Canadian, American, or
Syrian officials--was thrust into a tiny earthen cell he came to call a
"grave."

"It was three feet wide," he recalled. "It was six
feet deep. It was seven feet high. It had a metal door, with a small
opening in the floor, which did not let in light because there was a
piece of metal on the outside for sliding things into the cell."
There were two blankets, two dishes, and two bottles one for water and
one to use as a urinal.

For 10 months and 10 days, Arar shared his "grave" with a
shifting population of cats and rodents. Denied any semblance of basic
human comforts, Arar would be taken out of his cell every day and beaten
with heavy rods and thick electrical cables. He was constantly
threatened with electrocution. He constantly heard the anguished screams
of others whose treatment was even worse.

After several weeks of torture, Arar received visits from Canadian
consular officials, who seemed oddly indifferent to his treatment.
Several months after the ordeal began, amid incessant torture and
reiteration of the plausible threat that "tomorrow it will be
worse," Arar broke down and signed a document stating that he had
attended "a training camp in Afghanistan."

On October 5, 2003, after Arar made that confession, he was
released without being charged. After serving a sentence of nearly a
year in a Syrian gulag, suffering incessant torture at the hands of
KGB-trained interrogators, Arar was sent back to Canada without
explanation, without apology, without ever being permitted to confront
the witnesses against him or examine the evidence.

Bestial Methods

Though Arar was treated brutally at the hands of the Syrian secret
police, it could have been much worse. According to an investigative
report compiled by the New York Times, the Bush administration has used
the former Soviet Central Asian Republic of Uzbekistan as a
"surrogate jailer" and interrogator of terrorist suspects.

According to a 2001 State Department report, the Uzbek regime of
"ex"-Communist Party thug Islam Karimov regularly employs
torture in dealing with both political dissidents and common criminal
suspects. Beatings, asphyxiation, electroshock, and boiling of various
body parts are among the methods preferred by Karimov's secret
police, which is a direct outgrowth of the Soviet-era KGB. As described
in a 2002 State Department re port, two detainees killed by Uzbek prison
authorities "had likely been suspended in boiling water."

According to Craig Murray, Britain's former ambassador to
Uzbekistan, "CIA flights flew to Tashkent [the capital] often,
usually twice a week." In a July 2004 confidential memo to the
British Foreign Ofrice, Murray described evidence he had obtained of
U.S.-sanctioned torture of suspects "rendered" to the Uzbek
regime. "We should cease all cooperation with the Uzbek security
forces--they are beyond the pale," Murray urged the Foreign Office.
Murray's superiors, the former ambassador told the Times, were
"furious" over his objections, claiming that intelligence
obtained through torture was of value to the counterterrorism effort.
Rather than acting on Murray's recommendations, the Foreign Office
cashiered the whistle-blower.

For its part, the Bush administration has treated Karimov's
regime--a throwback to Stalin-era Communist totalitarianism--as a valued
ally in the "war on terror." Mr. Bush formalized the
relationship during a March 2002 Oval Office meeting with Karimov, and
the administration has lavished at least a half billion dollars on
Tashkent for use in "security matters," reported the Times.

On March 5, during Karimov's visit to the U.S., White House
press spokesman Scott McClellan was asked about the propriety of sending
suspects to Uzbekistan, where they would almost certainly be tortured.
McClellan breezily defended the practice by stating "it is
important that we gather intelligence to protect the American
people."

During a White House press conference in April, Mr. Bush was asked
about the methods used by Uzbek security forces in questioning suspected
terrorists. Refusing a direct answer--as is his wont--the president
offered the meaningless assurance that his administration seeks promises
"that nobody will be tortured when we render a person back to their
home country." But as the case of Mahar Arar illustrates,
"rendition" does not involve deportation to a suspect's
"home country" (in his case, Canada), but rather delivering
him into the hands of hired torturers in a country outside of U.S.
jurisdiction.

Chain the Beast

When criticized for abuses of power-torture, summary detention,
"rendition" of suspects to terror regimes--the Bush
administration and its defenders have typically employed a three-stage
defense that runs as follows: "The government's not doing
things like that. You can't prove they're doing things like
that. Well, all right, they are doing things like that--but what's
the problem, as long as it's only being done to
'them'?"

At the foundation of every defense of the Bush
administration's abuses of power is the notion that George W. Bush
can be trusted with the extraordinary powers he claims. Similar claims
were made with respect to the powers the administration of John Adams
had claimed through the Alien and Sedition Acts of 1798, which were
enacted during a time of national crisis in some ways similar to the
present one.

In a resolution published on November 10, 1798, Thomas Jefferson
condemned the Alien and Sedition Acts as an assault on constitutional
liberty and the foundation of an executive dictatorship. Under their
provisions, he warned, the federal government "may place any act
they think proper on the list of crimes, and punish it themselves";
the president, or any of his agents, could "himself be the accuser,
counsel, judge and jury, whose suspicions may be the evidence, his order
the sentence, his officer the executioner, and his breast the sole
record of the transaction." Under this doctrine of executive power,
Jefferson continued, all American citizens would be "reduced, as
outlaws, to the absolute dominion of one man, and the barrier of the
Constitution [would be] swept away."

While many esteemed President Adams as a model of piety and
rectitude, Jefferson warned that "confidence is everywhere the
parent of despotism--free government is founded in jealousy, and not in
confidence.... In questions of power, then, let no more be heard of
confidence in man, but bind him down from mischief by the chains of the
Constitution."

If we do not act soon to shackle our government in the metaphorical
chains of the Constitution, we will in short order find ourselves bound
by the very tangible chains of despotism.

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